Separate assets of partners cannot be presumed as firm's property without express or implied contract.

JUDGMENT :

ANIL KSHETARPAL, J.

1. By this judgment, two Regular Second Appeals i.e. RSA- 3333, 3334 of 2010 shall stand disposed of.

2. Learned counsel appearing for the parties are ad idem that these two Regular Second Appeals can be conveniently disposed of by a common judgment.

3. The dispute in both the cases is with respect to land measuring 37 kanals 7 marlas in C.S. No. 210/99 of 1986 and 9 kanals 7 marlas in C.S.No.145/97. It is not in dispute that both the pieces of land were purchased by way of a registered sale deed by 4 individuals namely Wazir Chand, Jai Bhagwan, Sat Parkash and Gian Chand. Further, it is established from the record that at one stage, two marlas of land was sold by the aforesaid four individuals jointly in favour of Jai Narayan vide registered sale deed dated 24.06.1967. It is also not in dispute that one of the co-owners i.e Gian Chand was never a partner in the various partnership firms which have been referred to hereinafter. The plaintiff in both the suits claimed that the firm M/s Saraswati Rice and General Mills is the owner in possession of the land referred to above. The question which arises for consideration is “whether a decree for declaration to the effect that separate immovable property of some of the partners has become the property of the partnership firm in the absence of a specific contract or any cogent evidence.”

4. On perusal of the various partnership deeds, dissolution deed and other relevant documents, it is apparent that there is no specific recital that the land was brought in by those partners in the partnership firm so as to make it the firm's property. In fact, there is no cogent evidence to this effect. In the revenue record, the land is recorded to be owned by the individual persons some of whom were no doubt partners but the partnership firm is nowhere recorded to be the owner.

5. Learned counsel appearing for the plaintiff-appellant while relying upon the dissolution deed dated 19.6.2017 submitted that the land is proved to be owned by the partnership firm. He further contended that Sat Parkash has remained silent from 1972 to 1988 as he had retired from the partnership firm. He further submitted that in partnership deed dated 03.09.1966, it has been decided that the factory, building and machinery belong to all the partners and assets will be divided as per what has been mutually agreed by the partners. Still further, while referring to clause 4 of the dissolution deed 19.12.1970, learned counsel contends that the assets and business premises were taken over by the continuing partners.

6. Per contra, learned counsel appearing for defendants no. 5 and 6 has contended that the partnership deed dated 03.09.1966 has never been exhibited and therefore, cannot be read in evidence. He further submitted that the plaintiffs filed a suit without impleading defendants no. 5 and 6 as parties. The effort was to get a decree as defendants no. 1 to 4 admitted the claim of the plaintiff. Fortunately, defendant no. 5 and 6 gained knowledge of the pendency of the suit and got themselves impleaded as a party. He further drew the attention of the Court to the replication filed by the plaintiff wherein there is a tactical shift in the stand. The plaintiff has in the alternative pleaded that the firm has become owner of the said property by way of adverse possession.

7. As noticed above, there is no document to prove that the suit land in both the suits was ever brought in the common stock of partnership firm. There is no written or oral material evidence to prove the same. Leaned counsel appearing for the appellant has tried to convince the Court to draw an inference by referring to one line from here or there. In the considered view of this Court, such inference cannot be drawn, particularly, in view of the finding of fact arrived at by the court. Still further, undisputedly, one of the co-owner Gian Chand was never a partner in any of the firms. Firstly, a partnership firm M/s Wazir Chand J